The United States Constitution guarantees the right to counsel for the accused. The State of Iowa has taken this right and written it into our state statutes. Iowa Code §804.20 states:
Any peace officer or other person having custody of any person arrested or restrained of the person’s liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person’s family or an attorney of the person’s choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney. If a call is made, it shall be made in the presence of the person having custody of the one arrested or restrained. If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody. An attorney shall be permitted to see and consult confidentially with such person alone and in private at the jail or other place of custody without unreasonable delay. A violation of this section shall constitute a simple misdemeanor.
Not only does our state code require the right to counsel be honored, but they have made it a crime for an officer to deny this right. But where does this law stand in practice? And, more specifically, what is the impact of this law on the ‘implied consent’ law that is invoked in OWI cases?
A person arrested for OWI has a limited right to contact an attorney under this code section. A person cannot, however, use this section to interfere with the two hour time limit for blood alcohol testing as required under Iowa Code §321J.6(2). This means that the right to consult with counsel is limited to circumstances that do not materially interfere with the time limit.
Generally speaking, the right to counsel is satisfied by allowing the accused to make a telephone call. There is no duty on the officer to inform the accused of their right to consult an attorney, and any request must be made in good faith.
Therefore, much of the freedom to consult with an attorney is at the discretion of the officer making the arrest. After reviewing scores of OWI arrest videos, I have seen officers exercise a wide discretion on this question. Many times, the officer will allow the accused to make many phone calls, now that cell phones are generally available and present. I have seen officers allow five or six separate attempts to contact an attorney, and time frames from a few minutes to fifteen or more.
An officer will likely allow the accused enough time to reasonably contact an attorney, but the officer will end these attempts as soon as he sees that no genuine effort is being made. The accused can contact a family member for help in finding an attorney, but as soon as the conversation goes from ‘searching for an attorney’ to ‘what’s for supper, honey?’ the officer may end the phone call immediately.
Another important point to stress is that there is no right in Iowa for these phone communications to be private. This may contrast with the language of the statute above, but our Supreme Court has stated “the telephone calls which section 804.20 assures to persons in custody are not intended to be confidential as is shown by the provision that they are to be made in the presence of the custodian. They are for the purpose of enabling the person to arrange for a legal consultation and assistance.” State v. Craney, 347, N.W.2d 668, 677 (Iowa 1984).
To summarize, if a person is accused of an OWI offense and taken down to the police station, he will be given the right to call an attorney and speak with that attorney with the officer listening. As soon as the attempts to reach an attorney become futile, non-genuine, or threaten the two hour time limit, the officer will continue with the implied consent proceedings and demand that the accused either takes or refuses the Datamaster/Breathalyzer test.
This article was prepared by Attorney Mark Thompson and law student Cody Farrens.